Smart laws don’t assure justice any more than a good recipe guarantees a delicious meal.
– Preet Bharara, Former US Attorney
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A peek into ancient law evidences the Hammurabi Code and Mosaic Law demanding an eye for an eye and a tooth for a tooth, a hand for a hand, and a foot for a foot. Pure retributive justice.
Time marched on. Humanity felt more urbane and civilised. The dispensers of justice felt that retributive justice was too harsh, too cruel, so it coughed up a liberal method to mete out punishment.
The doctrine of proportionality in law demands that the punishment be proportionate to the wrongdoing but with a degree of fairness and reasonableness.
Today, the guilty are literally getting away with murder. Silver-tongued lawyers and pliant judges and juries spoil the fun for retributive and distributive justice with meaningless judicial and legal platitudes.
Can you imagine what transpires in the halls of power where big deals are consummated and mega-projects are nodded and winked into existence involving money in the billions? Admittedly, there is always pliant legislation to protect and to reassure comfort to the needy, seedy and greedy in high places.
Crimes against humanity – genocide, specially – generates widespread publicity, reveals the tyrants’ sinister intentions, questions their morals, robustly condemn their acts until unenforceable justice is occasioned usually in some international tribunal.
Dispensing justice is a tricky business. “False allegations, wrongful convictions, excessive punishments, miscarriages of justice are often wholly the result of human failings, not flaws in the impersonal machinery of justice,” observed Preet Bharara.
Depending on your indictment and the gravity of your wrongdoing, law and justice gang up on you in the hands of third-rate law practitioners. Naomi Novik in her ‘Black Powder War’, argued that “justice is expensive. That’s why there’s so little of it, and it’s reserved for those with enough money and influence to afford it.”
In his seminal ‘Cry, the Beloved Country’, Alan Paton makes a critical observation: “The people, not the judge, make the law. Therefore if the law is unjust, and if the judge judges according to the law, that is justice, even if it not just.” The flesh and blood law-maker is not infallible.
The American lawyer Alan Dershowitz declared that “judges are the weakest link in our system of justice and they are also the most protected.” Justice dispensed by a government appointed judge is wholly suspect. The citizenry must select and elect experienced and reputable lawyers as judges as they do their representatives for one of the three organs of state. That is democracy in action.
India’s Panchayati Raj (Council of five officials) is the system of local self-government of villages in rural India as opposed to urban and suburban municipalities. It consists of the Panchayati Raj Institutions (PRIs) through which the self-government of villages is realised. This is afforded by Part IX of the Indian Constitution.
Miscarriage of justice is another phenomenon that assails the justice system in most countries, notably the United States. Hundreds who were serving life sentences and waiting on death row were exonerated when the Innocence Project unveiled the facts and the truth that were long suppressed due to prosecutorial misconduct.
In 2014, the International Court of Justice condemned the conviction of Datuk Seri Anwar Ibrahim as a miscarriage of justice and a violation of fundamental human rights when his 2012 High Court acquittal was overturned by the Court of Appeal following an appeal by the Malaysian government.
Many has asked why, as a Muslim, Anwar did not invoke sharia jurisdiction knowing full well that the English common law system constantly suffers from infantile paralysis.
The Holy Quran reveals that sharia governs many areas of a Muslim’s behaviour, including those relating to crime, politics, taxes, inheritance, marriage, divorce, hygiene, diet, prayer, fasting and pilgrimage.
“Jurisdiction is not given for the sake of the judge, but for that of the litigant,” observed the French mathematician Blaise Pascal. That’s the opening salvo for a successful trial at the appropriate court of law .
But we live in a mad and maddening world where ethics, morals, beliefs and values are placed in “the wheel of misfortune” featuring law and justice as a lottery draw. Fair, just and conscionable are not on that wheel.
It pays to pause and ponder the American writer and journalist Robert Kuttner who astutely observed that “the economic illusion is the belief that social justice is bad for economic growth.” A perfect society is not ideal for prosperity!
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
